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In her Internet Issues/Social Media column, Shari Claire Lewis writes: The bottom line lesson from 'Blick' for e-businesses is that although this issue is still evolving, it may be beneficial for e-companies to proactively begin the process of bringing websites in compliance with the WCAG 2.0 Level AA standard, which may act as a defense to a suit or a deterrent to being targeted.

Tax Tips columnist Sidney Kess wrties: The Tax Cuts and Jobs Act of 2017 (TCJA) introduced a new write-off for owners of pass-through entities that runs from 2018 through 2025. There is much confusion about this new deduction and some clarification will need IRS guidance. Here is what is clear so far, how it impacts attorneys, and what needs IRS and/or Congress to explain further.

The honeymoon period for bitcoin is over. Not waiting for Congress to figure out what to do about virtual currency and how to regulate it, the Internal Revenue Service has fired the first shot across the bow of Coinbase, one of the world’s largest bitcoin trading exchanges, by serving Coinbase with a John Doe summons seeking customer information.

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul analyze a decision by U.S. District Judge Katherine Polk Failla, in which she discusses a surprising gap in judicial immunity accorded to New York state judges, ultimately dismissing the claims against a judge on alternative grounds.

This past year has seen Bitcoin and other cryptocurrencies rise to dizzying valuations—Bitcoin, for example, rose 1500% in a year. In the last few weeks, the market for cryptocurrencies has become extremely volatile. Bitcoin has gained or lost more than 20% of its value over the course a few trading days multiple times. It is currently trading at about 70% below its peak value of only a few weeks ago

In his Commercial Division Update, Thomas J. Hall writes: When there is no enforceable partnership agreement, the party seeking to establish an implied partnership must show that a partnership nevertheless exists based on the conduct, intention and relationship between the parties. Although no one factor is determinative, recent Commercial Division decisions have placed a heightened emphasis on the factor of shared losses.

A 2016 ruling by the U.S. Supreme Court closed the door on civil Rico claims by foreign plaintiffs suffering injuries abroad. International Litigation columnists Lawrence W. Newman and David Zaslowsky examine cases in which the lower courts have scrambled to sort out what may be left of foreign-based civil RICO claims.

When is a complaint styled as a “class action” to be treated as a real class action? Is it only after all of the prerequisites of CPLR 901 and 902 have been met, an order issued pursuant to CPLR 903 and notice sent pursuant to CPLR 904? Or is it earlier?

Taxation columnists David E. Kahen and Elliot Pisem write: Public Law 115-97, the “tax reform” legislation enacted last December, effected major changes to federal income tax law. While many of the changes are of relevance specifically to individuals, others affect all businesses, regardless of their form of organization, and some are particularly relevant to corporate taxpayers.
David E. Kahen and Elliot Pisem are members of the law firm of Roberts & Holland.

Franchising columnist David J. Kaufmann writes: For the first time ever, a New York court has held that late delivery of a franchisor’s Franchise Disclosure Document, standing alone, will not trigger liability unless the subject franchisee is able to prove that it sustained damages as a result of late FDD delivery.

Notwithstanding the recent statement of Times publisher A.G. Sulzberger that “[we] will continue to infuse our journalism with expertise by having lawyers cover law,” his paper and other media outlets continue to have non-lawyers reporting on legal matters and to make significant mistakes when they do.

States and municipalities have brought over 200 lawsuits against opioid distributors and manufacturers in the United States, in response to the Opioid Epidemic. Using civil suits to solve this public health problem is not a proper function of the justice system. Opportunistic litigation diverts attention from the need for properly targeted public policy solutions.

Despite the recent downswing in cryptocurrency markets, investor interest has not waned. An increasing number of investment funds is emerging that focus on cryptocurrencies including tokens from Initial Coin Offerings or ICOs.

Ethics and Criminal Practice columnist Joel Cohen writes: When a lawyer is called upon to say “yay” or “nay,” he needs to dig deep into his basket of analytical skills and legal acumen to ensure that he gives the client the full range of potential upsides and downsides. But I mean—the full range!

Corporate and Securities Litigation columnists Mark D. Harris and Margaret A. Dale write: The principles set forth in 'Alvarez' create many opportunities for strategic litigation. The decision makes it abundantly clear that both plaintiffs and defendants will need to be extremely diligent at the outset of a lawsuit to utilize the advantage or defeat the threat of collateral estoppel.

In this Special Report: "Text Messages as Evidence: The Current State of Affairs in New York State Courts," "Who's Qualified to Arbitrate Your Insurance Dispute?," "Heeding the ‘Wake Up’ Call on Federal Rule of Civil Procedure 34," "Defeating Class Certification in TCPA Cases," "Growing Into the Gig Economy: Pending Legal Challenges for the Industry" and "Is Section 1782 Discovery Available From Corporations Not ‘at Home’ Under ‘Daimler’?"

The gig economy is the wave of the future and, like any new and disruptive industry, there will undoubtedly be growing pains. But a smart legal strategy can lay the groundwork for a far more seamless transition into this era.

For companies facing TCPA class actions, hope is not lost. In addition to the powerful strategies that are available for obtaining dismissal on the pleadings or negotiating early settlements, companies have an arsenal of strategies they can deploy to defeat class certification.

This article addresses the text of §1782, pre-'Daimler' decisions construing the relevant statutory requirement and the recent 'Sargeant' decision, and shows how Judge Pauley’s statutory analysis limits §1782’s reach even more significantly than the constitutional analysis of 'ANZ Bank'.

A recent English decision, 'Allianz Insurance PLC v. Sirius International Insurance Corporation', illustrates how tricky qualification provisions can be and the importance of having such provisions drafted in a clear and unambiguous fashion.

The Second Circuit’s decision in 'Waggoner v. Barclays' has garnered attention for its rulings on the requirements for showing and rebutting market efficiency and the related presumption of reliance in class actions brought under §10(b) of the 1934 Securities Exchange Act. Less noticed—but no less important—is the court’s discussion of the damages that the certified class might recover.

In their Privacy Matters column, Richard Raysman and Peter Brown discuss the decision in 'Broker Genius v. Zalta', in which the U.S. District Court for the Southern District of New York held that the inconspicuous language of the licensor’s terms of use, coupled with its routine and frequent disclosure of the entire architecture of the user interface of the software supposedly protectable as a trade secret, precluded licensor’s successful motion for injunctive relief for trade secret misappropriation.

By seeking to ban all “mandatory arbitration” agreements, Proposal 18 presents one change to New York law that would have wide ranging effects on how private employers and employees navigate harassment (and possibly other) claims. However, other elements of the Proposal, though aimed at harassment in the public sector, may portend a future evolution of the laws regulating private employers.

Antitrust Trade and Practice columnists Shepard Goldfein and Karen Hoffman Lent write: 'Ohio v. American Express' is an opportunity for the U.S. Supreme Court to clarify how to assess two-sided markets under the rule of reason. The potential magnitude of the ruling and its impact on markets and individuals warrant keeping an eye on oral arguments later this month.

I go to work every day thinking about not just how to make the program better—I challenge myself with how to make the company better. I have found that if you start with that question, the program works better and is effective, efficient, and sustainable.

In his No-Fault Insurance Law Wrap-Up, David M. Barshay analyzes two cases, one tackling issues with questions at an examination under oath, and another presenting a scenario wherein a non-moving party not only failed to oppose a motion, but apparently agreed to the order granting the motion.

On Nov. 29, 2017, Deputy Attorney General Rod Rosenstein announced a new FCPA Corporate Enforcement Policy based on the 2016 FCPA Pilot Program, which first attempted to formalize the DOJ’s treatment of self-disclosure, cooperation, and remediation in the FCPA enforcement context. In announcing the new Policy, Rosenstein explained the DOJ’s view that the Pilot Program had been successful, significantly increasing self-disclosure rates. The Policy, however, is a somewhat mixed bag for companies struggling to decide whether to voluntarily disclose misconduct.

Corporations today must ask themselves not only if they are doing enough to avoid liability with regards to harassment claims but also if they are doing enough to combat the culture of harassment that exists in many workplaces.

White-Collar Crime columnists Robert J. Anello and Richard F. Albert write: White-collar criminal enforcement will continue to evolve in the year ahead, but some predictions can be made based on year one of the Trump administration. Federal law enforcement officials have enunciated a clear focus on non-white-collar crimes and, with numerous vacancies in the Justice Department, this shifting focus is likely to result in a decrease in white-collar investigations and prosecutions.

It is submitted that an applicant for interim or emergency relief should only be required to establish that immediate loss or damage will result if relief is not granted, that it has an arguable case on the merits and that the equities are balanced in its favor. “Irreparable harm” and “likelihood of success” should not be an arbitrator’s guiding star.

Employment Law columnists Jeffrey S. Klein and Nicholas J. Pappas write: Once the only reliable statutory argument for federal-question jurisdiction in a trade secret dispute, the CFAA now acts as a complement to the DTSA by protecting sensitive information from a different perspective. This being said, several circuits are split on the scope of the protections afforded to employers under the CFAA, limiting the statute’s effectiveness in certain jurisdictions.

Since there is no definitive “solution,” it is especially important to consider how systematic delay, the growth and natural development of the children and/or a post-trial change in circumstances can be used by the non-custodial parent to obtain reconsideration of a custody determination.

Foreign discovery in state court litigation is never easy. Depositions of non-party witnesses in other states can require a commission in another state. Depositions of non-party witnesses in other countries can require adherence to international discovery law.

In their Federal E-Discovery column, Christopher Boehning and Daniel J. Toal discuss 'Winfield v. City of New York', a decision which adds to the growing body of law that as long as a producing party’s use of technology-assisted review tools, including predictive coding, is reasonable and proportional in the context of a matter, the mechanics of such efforts should not be open to scrutiny by an opposing party.

Trusts and Estates columnists Ilene Sherwyn Cooper writes: As the year 2017 came to a close, Surrogate’s Courts throughout the state continued to address a multitude of issues affecting trusts and estates.

In this Special Report: "Unrung Bells and the Quick-Peek Order," "Three Strategic Choices in E-Discovery,"
"Regulator Preservation Notices—Can You Narrow the Scope?," "Beyond Document Review: Meeting Other Big Data Challenges" and "Getting It Right the First Time: Avoid the Dreaded Privilege Log ‘Re-Review.’"

Grappling with the delays and discovery motions, courts have fashioned more creative discovery processes. One such mechanism is the “quick-peek” agreement. Viewed as a mechanism for parties to exchange data quickly without the fear of waiving privilege or its subject matter, courts started to consider the mandatory use of the quick-peek to streamline discovery in 2014.

Electronic discovery gets a bad rap. Most lawyers find it unappetizing, high risk, and unglamorous. This perspective, however, overlooks a key litigation opportunity: developing e-discovery strategy hand in hand with trial strategy. It’s the best approach for achieving solid results for your clients.

A federal or state regulator, such as the SEC or a state attorney general, sends a company a preservation notice stating that it believes the company may possess “documents” relevant to an ongoing investigation and requests that the company “reasonably” preserve such evidence until further notice. How should the company respond?

Years after Judge Andrew Peck declared it to be “black letter law” in 'Rio Tinto', technology-assisted review has finally entered the mainstream among a growing suite of technology-driven e-discovery tools. It is taking a bit longer, however, for practitioners to fully recognize that document review over large data populations is an information retrieval task.

Privilege logs are loathed by the attorneys who create them, the judges who review them, and the clients who pay for them. And the only thing worse than creating a privilege log is re-creating a privilege log. While we can’t promise a pain-free process, an organized approach upfront will help avoid this judicially-mandated infliction of pain.

Entertainment Law columnists Michael I. Rudell and Neil J. Rosini write: When a band name retains its value notwithstanding changes in band personnel, a recurring legal question arises: Who among the band members retains the right to continue performing under the name of the original band?

While abundant publicity has accompanied spectacular data breaches at Equifax and Yahoo, less attention has been paid to cybersecurity at law firms. This, however, is changing, as cybersecurity events, including hacking, are on the rise at law firms.

Labor Relations columnists David E. Schwartz and Risa M. Salins write: On Jan. 5, 2018, the DOL announced it would replace its six-part test for determining when an intern is entitled to minimum wages and overtime pay as an employee under the Fair Labor Standards Act. The DOL’s new test allows courts to examine the economic realities of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship.

In this Construction Accident Litigation column, Brian J. Shoot and Susan M. Jaffe write: The Court of Appeals is frequently called upon to make rulings concerning the scope and application of Labor Law §240, the so-called scaffold statute. It sometimes explains the grounds for its determinations in great detail. This column concerns a recent case in which the court went in, well, a different direction.

Later this month, the U.S. Supreme Court will hear oral argument regarding the Second Circuit’s decision in 'United States v. Microsoft', a controversial ruling that highlights the tension between the present-day reality of electronic data that moves rapidly and readily across the globe, and traditional views of evidence as residing within specific national borders.

Secured Transactions columnist Barbara M. Goodstein writes: I’m happy that tax issues usually don’t play a major role in most plain vanilla syndicated secured lending facilities. One area, however, that we finance lawyers have had to contend with, even in plain vanilla syndicated loan facilities, is §956 of the Internal Revenue Code.

In his Civil Rights and Civil Liberties column, Christopher Dunn revisits the troubling practice of denying bail to arrestees deemed to pose a threat to public safety. He writes: "The deeply controversial nature of this form of preventive detention is largely lost in the current bail-reform debate, but it was only 30 years ago that the Supreme Court definitively addressed the issue. And it did so in a decision that lays bare the extraordinary constitutional implications of jailing people, often for years, who are presumed to be innocent on the supposition they will commit a future crime.:

In his Cross-Border concerns column, Stephen Treglia writes: Time is running out for lawyers representing certain types of business entities, specifically, those in the financial sector and those doing business in the EU, and there is still much work left to do. The window is closing regarding when critical personal data belonging to those businesses that are in a lawyer’s possession must be shielded from unauthorized access over the lawyer’s computer systems. Incidentally, if your clients are involved in health care, that same window closed a few years ago.

In this Special Report: "CFTC 2018 Enforcement: Where the Puck Is Going," "The Psychology of White-Collar Crime, and Why It Matters," "Preserving Privilege in Government Investigations in Light of 'SEC v. Herrera'," "Traversing the Minefields: Outside Counsel May Face Criminal Liability in Complex Business Cases," "Decisions Highlight Risk of Unintended Implied Waivers of Privilege" and "ICO Enforcement Actions in 2017 and Trends for 2018."

The important ongoing national conversation about sexual harassment should serve as a wake-up call to companies, board members, and C-suite executives about the need to be proactive when confronted with allegations of harassment or other workplace misconduct.

As a planning and management advisor to law firms of all sizes over the past 30 years, I have found mid-size firms to be both interesting and professionally rewarding clients. They are also the firms for which my services have had the most impact.

Over the last year, the CFTC continued to align itself with other, more frequently-lauded enforcement agencies like the U.S. Department of Justice and U.S. Securities and Exchange Commission. But the CFTC also closed out its fiscal year having brought only 49 enforcement actions, nearly 30 percent fewer actions than in FY2016, and obtaining orders totaling approximately $412 million in restitution, disgorgement and penalties, amounting to only one-third of the $1.29 billion garnered in FY2016.

When a complex transaction directed by a CEO or CFO is later deemed criminal and the executive is charged, what exposure could outside counsel face having advised and presumably approved the transaction? Similarly, when working with high-ranking executives at a company, when does outside counsel have an obligation to report and update a company’s board of directors regarding their work for the CEO on behalf of the company?

White-collar attorneys will continue to employ the attorney proffer to advance their clients’ interests in responding to investigations, even while on occasion accepting the consequence of some limited waiver of privilege over the facts they strategically divulge.

Whereas 2017 set some basic guardrails around the ICO market, 2018 will likely see an increase in regulatory activity by multiple agencies, and a deeper engagement with the difficult legal questions posed by ICOs.

In terms of practical impact, the decision in 'SEC v. Herrera' appears to expand the scope of materials that may be obtained as a result of actual waiver through disclosure, and further blurs the line between subject matter waiver and actual waiver. Both results unfortunately provide potent new tools for litigants seeking to obtain materials previously considered privileged.

In her Western District Roundup, columnist Sharon M. Porcellio discusses the recent decision in 'L.M. Sessler Excavating', in which the court considered an issue of first impression: whether the pleading standard articulated in 'Twombly' and 'Iqbal' is the proper measure for pleading a claim of direct patent infringement.

Corporate Governance columnists David A. Katz and Laura A. McIntosh write: In light of recent events, corporate directors may consider adding an item to the agenda for their next board meeting: the issue of potential sexual misconduct at the company.

Sarah Cave and Terence Healy examine how the proportionality standard under Rule 26 can be used to limit deposition discovery of the government in enforcement proceedings brought by the U.S. Securities and Exchange Commission.

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: When the Trump administration issued an order in September 2017 setting March 2018 as the end of Deferred Action for Childhood Arrivals, a flurry of litigation followed that reached the Second Circuit once and is headed there again.

Patent and Trademark Law columnist Robert L. Maier writes: The Supreme Court’s May 2017 decision in 'TC Heartland v. Kraft Foods Group Brands' reshaped the patent litigation landscape in the United States—now more evenly dispersing patent cases across courts nationwide. But courts continue to grapple with questions spawned by that decision, including as to whether it constituted a change in the law that could permit defendants in now-pending cases to raise new venue objections, even if they had not done so before.

Richard J. Schager Jr. writes: In a 4-3 decision last month, a divided New York Court of Appeals held that where an action brought as a class action is voluntarily dismissed, CPLR 908 requires both (1) judicial approval and (2) notice to the putative class, even where the class has not been certified, and even if no class certification motion has been made.

In his Health Law column, Francis J. Serbaroli discusses the long and unfortunate history of sexual harassment in the health care workplace. Given the recent spate of high-profile career-ending sexual harassment charges, he urges all health care employers to have comprehensive policies and procedures for handling complaints, to educate everyone in the organization about sexual harassment, and to promote a culture of respect for all employees.

In his Criminal Law column, Ken Strutin writes: Artificial intelligence and information networks are the toolbox of contemporary legal practice, but not for all. Fettered in paper prisons, pro se inmates are without counsel, computers or connectivity.

Robert D. Lang and Rachel Nudel write: Whether skateboard, electric hover board, or hybrid electric skateboard, the use of these small personal vehicles presents a range of legal issues for the general public, operators and practitioners.

International Criminal Law and Enforcement columnists Philip Patterson and Vera Kachnowski write: The end of 2017 marked both the 40th anniversary of the FCPA and a $965 million FCPA settlement with Swedish telecommunications company, Telia Company AB. As we begin the new year, FCPA watchers will be closely monitoring how remedies such as this evolve under both SEC and DOJ authority, in light of other 2017 developments.

Janet DiFiore, Chief Judge of the State of New York, writes: Our work to modernize the structure and organization of our court system is a matter of the utmost mutual concern. It is absolutely vital that the Bench and Bar work together to recommend and follow through on practical, achievable constitutional amendments that will make our court system more efficient, affordable and accessible, and support the Empire State’s ability to maintain a healthy business climate that supports economic growth and job creation.

Lawrence K. Marks, Chief Administrative Judge of the New York State Unified Court System, writes: One critical means of achieving the goals of the Excellence Initiative is through technology. By expanding and modernizing our technology operations, we have made justice more accessible and more efficient.

Rolando T. Acosta, Presiding Justice of the Appellate Division, First Department, writes: From e-filing to standardizing Appellate Division practice rules to developing a uniform guide to New York evidence, our judiciary is taking needed steps to modernize and become more efficient.

Alan Scheinkman, Presiding Justice of the Appellate Division, Second Department, writes: As the court’s newest member, I am adjusting to a new way of adjudicating cases. No longer will I be alone in controlling a calendar and a courtroom and acting as sole arbiter of requests for relief. My role now will be to approach cases from the perspective of a reviewing court and to work collaboratively with my new and highly distinguished colleagues to achieve a just result in each appeal that comes before us.

Elizabeth A. Garry, Presiding Justice of the Appellate Division, Third Department, writes: The New York State Bar Association's Annual Meeting provides an excellent example of what is great about our profession. Attorneys from across New York state and beyond gather as a community of colleagues from vastly different backgrounds, practice areas and professional settings, but with a shared commitment to learning from one another and upholding the highest standards of service and integrity.

Gerald J. Whalen, Presiding Justice of the Appellate Division, Fourth Department, writes: Our oath to uphold the Constitution is an active duty assignment. Vigilance may not require perfection; nonetheless we are expected to be perfect in our earnestness to fulfill our duty. The promises that have been made require no less.

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